Citation Nr: 9924161
Decision Date: 08/25/99 Archive Date: 08/27/99
DOCKET NO. 95-12 917A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for schizophrenia.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESSES AT HEARINGS ON APPEAL
Appellant, sister, and brother-in-law
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
INTRODUCTION
The veteran served on active military duty from December 1971
to September 1993, from April 1974 to April 1977, and from
August 1978 to July 1983. July 1989 to May 1991.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from the Department of Veterans
Affairs (hereinafter VA) regional office in Atlanta, Georgia
(hereinafter RO).
At the veteran's videohearing before a member of the Board in
June 1999, the issues of entitlement to service connection
for bruxism and a stomach disorder were raised. These issues
have not been developed for appellate review and are
therefore referred to the RO for appropriate disposition.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's only compensable service-connected
disability, schizophrenia, is shown to be productive of
severe impairment of social and industrial adaptability.
3. The veteran has not worked since being discharged from
active duty in 1991. He has a twelfth grade education.
4. His schizophrenia prevents him from obtaining and
maintaining substantially gainful employment.
CONCLUSIONS OF LAW
1. The schedular criteria for a 70 percent evaluation for
schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, Diagnostic Code 9205 (in effect
prior to November 7, 1996).
2. The criteria for entitlement to a 100 percent schedular
evaluation based on individual unemployability due to
schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.16(c), Diagnostic Code 9205 (in effect
prior to November 7, 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran's service medical records are negative for a
psychiatric disorder during his first three periods of active
duty. The enlistment examination conducted in July 1989 was
negative for findings or complaints of a psychiatric
disorder. Beginning in February 1990, the veteran was
evaluated for psychiatric problems diagnoses as
schizophrenia, chronic, residual type. He was hospitalized
during which time he was evaluated by a physical evaluation
board. The diagnosis was schizophrenia, residual type which
existed prior to service and was not aggravated by service.
It was manifested by impairment in occupational functioning,
blunted and an inappropriate affect, digressive
circumstantial speech, ideas of reference, delusional
thinking, and a marked lack of initiative and energy. He was
discharged from active duty.
A VA examination was conducted in April 1994. The veteran
complained of sleep impairment, stress, depression, and
anxiety. The veteran was suspicious of the government and
ruminated concerning his contacts with UFO's. He denied
auditory and visual hallucinations, and homicidal and
suicidal ideations. Ideas of reference were reported. The
veteran's speech was noted as goal directed and
circumstantial. Grandiose delusions were reported, as well
as obsession with UFOs and extraterrestrials holding the
truth to the meaning of the existence to the earth. The
veteran reported being able to understand the moods of people
in other countries. He was oriented and his memory was
intact. Insight and judgment were reported as fair to poor.
The diagnoses included schizoaffective disorder.
In January 1995, the RO granted service connection for
schizophrenia and assigned a 30 percent rating.
The veteran testified at a personal hearing before the RO in
July 1995, that he lived alone and was able to maintain an
apartment. He stated that he only had one friend, and had a
good relationship with one of his sisters. His sister
testified that the veteran tended to have difficulty with
people as he stressed his opinions, and people would either
listen to him or automatically turn him off and label him as
crazy. She stated that his chances of employment in the
local area were not good as everyone knew, or people would
soon find out after talking to him, that he had a psychiatric
problem. The veteran's brother-in-law testified that the
veteran helped him with light work, and that he took
direction well. The brother-in-law stated that he did not
think the veteran would be able to be hired in the local
area.
Of record is a May 1992 determination by the Social Security
Administration, which found that the veteran was disabled
effective from January 19991 due to schizophrenia and other
psychotic disorders. Private psychiatric and psychological
reports accompanied this decision.
A VA examination was conducted in October 1995. At that time
it was reported that he had been married twice and was last
divorced in 1980. He had 12 years of education and was not
working. He provided detailed information concerning his
knowledge of UFOs.
The examination showed no psychomotor alterations, with
adequate eye contact and rapport. The veteran reported being
depressed at times. His affect was full range, slightly
irritable. The veteran denied hallucinations, but displayed
delusional thought. He was oriented and his memory,
attention, abstraction, and concentration were intact.
Insight and judgment were noted as fair. The diagnoses
included residual schizophrenia, by history, and delusional
disorder, paranoid type. It was noted that manifestations of
the veteran's psychiatric disorder were a source of
significant impairment.
Lay statements from the veteran's family and friends were
submitted in May 1996. Which describe his symptoms and their
effect on his ability to work.
A VA examination was conducted in conducted in January 1998.
The veteran reported being unemployed since service discharge
in 1991. On examination, it was noted that the veteran had
no insight into his illness. He was delusional and
negativistic. No periods of remission were shown. The
veteran reported that he had friends in a group that he
joined regarding UFO's. It was noted that the veteran gets
depressed and had a decreased appetite. He denied auditory
and visual hallucinations, and did not have suicidal or
homicidal ideations. It was reported that the veteran had
signs and symptoms of chronic paranoid schizophrenia,
residual type. Impairment of thought processes were present,
as the veteran was delusional. An inappropriate affect was
reported. Slight pressured speech and circumstantial speech
was shown. The veteran reported trouble sleeping that
interfered with his daytime activities. The veteran was able
to maintain personal hygiene and other basic activities of
daily living. He was oriented with no memory loss or
obsessive or ritualistic behaviors. The diagnoses included
schizophrenia, chronic paranoid, residual type. The Global
Assessment of Functioning was 40. There was impairment in
reality testing and impairment in thinking.
The veteran testified at a videohearing before the Board in
June 1999, that he experienced depression and short-term
memory loss. He stated that he had trouble sleeping and
racing thoughts. The veteran testified that although he had
obtained applications for jobs, he could not fill them out,
as he would have to tell them that he had been diagnosed with
chronic residual schizophrenia. He stated that he visits a
friend during the day and oversees a cousin's property. The
veteran reported that he was outspoken and when he said
things that were not politically correct it scared people.
The veteran's sister testified that the veteran "on the UFO
issue and it scared people. She noted that most people stay
away from him, and that the veteran was a loner.
Analysis
Upon review of the record, the Board concludes that the
veteran's claim is well grounded within the meaning of the
statute and judicial construction. Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). The VA
therefore has a duty to assist the veteran in the development
of facts pertinent to his claim. In this regard, the
veteran's service medical records and VA medical records have
been included in his file. Upon review of the entire record,
the Board concludes that the data currently of record provide
a sufficient basis upon which to address the merits of the
veteran's claim and that he has been adequately assisted in
the development of his case.
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended to compensate, as far as can practicably
be determined, the average impairment of earning capacity
resulting from such disorder in civilian occupations. 38
U.S.C.A. § 1155. In considering the severity of a disability
it is essential to trace the medical history of the veteran.
38 C.F.R. §§ 4.1, 4.2, 4.41 (1998). Consideration of the
whole recorded history is necessary so that a rating may
accurately reflect the elements of disability present. 38
C.F.R. § 4.2 (1998); Peyton v. Derwinski, 1 Vet.App. 282
(1991).
The law and regulations in effect at the time of the
initiation of this appeal show that the service-connected
schizophrenia is rated under the criteria in the VA's SCHEDULE
FOR RATING DISABILITIES, codified in 38 C.F.R. Part 4 Diagnostic
Code 9205. Diagnostic Code 9205 provides for the evaluation
of schizophrenia, residual type, other and unspecified types.
A 30 percent evaluation will be assigned when there is
definite impairment of social and industrial impairment. A
50 percent evaluation is warranted when there is considerable
impairment of social and industrial impairment. A 70 percent
evaluation is warranted where there is symptomatology, which
is less than that required for a 100 percent evaluation, and
produces severe impairment of social and industrial
adaptability. A 100 percent schedular evaluation is
warranted where there is active psychotic manifestations of
such extent, severity, depth, persistence, or bizarreness as
to produce total social and industrial inadaptabilty.
VA regulations provide that, where the only compensable
service-connected disability was a mental disorder that
warranted a 70 percent rating under the rating criteria, a
100 percent schedular rating was to be assigned if the mental
disorder precluded the veteran from securing or following a
substantially gainful occupation. 38 C.F.R. § 4.16(c)
(1996).
During the pendency of this appeal, VA criteria for
evaluating mental disorders were amended effective November
7, 1996. Under the revised rating criteria, a 30 percent
evaluation is warranted when occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
task (although generally functioning satisfactorily, with
routine behavior, self care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often) chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent evaluation is warranted when occupational and
social impairment is found with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g. retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent rating is warranted when there is occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
A 100 percent rating is warranted if there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; gross inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. 38 C.F.R. §
4.130, Diagnostic Code 9205 (1998).
A GAF rating is a scale reflecting the psychological, social,
and occupational functioning on a hypothetical continuum of
mental-health illness. Richard v. Brown, 9 Vet.App. 266, 267
(1996), citing Diagnostic and Statistical Manual of Mental
Disorders (4th ed.1994). A GAF of 21 to 30 is defined as
behavior that is considerably influenced by delusions or
hallucinations or serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly
inappropriate, suicidal preoccupation) or an inability to
function in almost all areas (e.g., stays in bed all day, no
job, home or friends).
A GAF of 31 to 40 is defined as exhibiting some impairment in
reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) or any major impairment in
several areas, such as work or school, family relations,
judgment, thinking or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and
is failing at school).
Although the regulations governing the evaluation of mental
disorders were amended as of November 7, 1996, because the
regulations applicable prior to this time are more favorable
to the pending claim for an increased rating, the Board finds
that the veteran's claim will be evaluated under the former
regulations governing undifferentiated-type schizophrenia
with paranoid ideations and depression. See Karnas v.
Derwinski, 1 Vet.App. 308, 313 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994). However, the Board
notes that this claim is based on the assignment of an
initial rating for a disability following an initial award of
service connection for that disability. In Fenderson v.
West, 12 Vet. App. 119 (1999), the Court held that the rule
articulated in Francisco did not apply to the assignment of
an initial rating for a disability following an initial award
of service connection for that disability. Id.; Francisco, 7
Vet. App. at 58.
To summarize, the evidence reflects that the SSA had
determined that the veteran had been disabled since 1991 due
to his service connected disability. The 1994 VA examination
showed that the veteran was obsessive and delusional with
poor insight and judgment. The 1995 VA examination confirmed
the presence of delusions. Depression and paranoia was also
reported. Furthermore, the January 1998 VA examination
showed that he had delusions, depression, inappropriate
affect, circumstantial speech, and trouble sleeping. The GAF
of 40 confirms his inability to work. The record reflects
that he has been unemployed since 1991 and had been divorced
twice.
Based on these findings it is the Board's judgment that the
schizophrenia is productive of severe social and industrial
impairment. As such, a 70 percent rating is warranted under
the criteria in effect prior to November 7, 1996.
However, this same evidence does not provide a basis that
demonstrates the schizophrenia warrants a 100 percent rating
under either the old or revised rating criteria. Total
social and industrial inadaptability would be required to
assign a 100 percent evaluation. The current medical
findings do not show the presence of any active psychotic
manifestations of such extent, severity, depth, persistence,
or bizarreness as to produce complete social and industrial
inadaptabilty.
Also the findings attributable to the schizophrenia do not
result in gross impairment in thought processes or
communication; persistent hallucinations; gross inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name.
The schizophrenia is the veteran's only service-connected
disability. In view of the previously discussed grant of 70
percent, the provisions of 38 C.F.R. § 4.16(c) must now be
considered.
In determining whether veteran is entitled to a total
disability rating based upon individual unemployability,
neither the veteran's non-service-connected disabilities or
his advancing age may be considered. Van Hoose v. Brown, 4
Vet.App. 361 (1993). The sole fact that a claimant is
unemployed or has difficulty obtaining employment is not
enough. A high rating in itself is recognition that the
impairment makes if difficult to obtain and keep employment.
The question is whether the veteran is capable of performing
the physical and mental acts required by employment, not
whether the veteran can find employment. See Van Hoose v.
Brown, 4 Vet.App. at 63.
In this regard, the evidence reflects that the veteran has
not worked since his last period of service in 1991. He has
been found disabled by SSA. The medical records confirm
persistent delusions, depression, and inappropriate affect.
The Board finds the schizophrenia, when viewed in conjunction
with the veteran's work history and education, prevents him
from obtaining and maintaining substantially gainful
employment. Accordingly, a 100 percent schedular rating is
thus warranted with application of 38 C.F.R. § 4.16(c), which
was in effect prior to November 7, 1996. This is the highest
rating warranted during the appeal period. See Fenderson v.
West, 12 Vet. App. 119 (1999).
ORDER
A 70 percent evaluation for schizophrenia and a 100 percent
schedular rating based on individual unemployability due to
the service-connected schizophrenia pursuant to 38 C.F.R. §
4.16(c) are granted, subject to law regulations pertaining to
the payment of monetary benefits.
ROBERT P. REGAN
Member, Board of Veterans' Appeals